Fried, Charles

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 Philosophical Underpinnings of the First Amendment  (Article begins on next page)The Harvard community has made this article openly available.Please share how this access benefits you. Your story matters.Citation Charles Fried, Philosophical Underpinnings of the FirstAmendment, 41 Loy. L.A. L. Rev. 329 (2007).Published Version http://digitalcommons.lmu.edu/llr/vol41/iss1/16/Accessed February 16, 2015 6:28:35 PM ESTCitable Link http://nrs.harvard.edu/urn-3:HUL.InstRepos:13548599Terms of Use This article was downloaded from Harvard University's DASHrepository, and is made available under the terms and conditionsapplicable to Other Posted Material, as set forth athttp://nrs.harvard.edu/urn-3:HUL.InstRepos:dash.current.terms-of-use#LAALoyola Marymount University and Loyola Law SchoolDigital Commons at Loyola MarymountUniversity and Loyola Law SchoolLoyola of Los Angeles Law Review Law Reviews9-1-2007Philosophical Underpinnings of the FirstAmendmentCharles FriedThis Symposium is brought to you for free and open access by the Law Reviews at Digital Commons at Loyola Marymount University and Loyola LawSchool. It has been accepted for inclusion in Loyola of Los Angeles Law Review by an authorized administrator of Digital Commons at LoyolaMarymount University and Loyola Law School. For more information, please contactdigitalcommons@lmu.edu.Recommended CitationCharles Fried,Philosophical Underpinnings of the First Amendment, 41 Loy. L.A. L. Rev. 329 (2007).Available at: http://digitalcommons.lmu.edu/llr/vol41/iss1/16PHILOSOPHICAL UNDERPINNINGSOF THE FIRST AMENDMENTCharles  Fried*I  am  glad  I  came  to  the  Commercial  Speech  Symposium  andwas  allowed  the occasion  to  reread  Steve  Shiffrin's  work'  and  alsobecome  acquainted  with  the  rather  remarkable  community  thatLoyola Law School represents.I  think  it is  really  Ed Baker2  whom  I have  to  address  here.  Icould not agree  with him less.  Like Ed 3 -and  like some,  but not  allof you-liberty, to  my mind, is the first virtue.  And the reason thatliberty is the first virtue could be connected to and derived from whowe  are;  liberty  is  a  basic  responsibility  to  ourselves  for  what  wemake of our lives, the only lives we will ever have.That  liberty  entails,  first of all,  the most important  of liberties:liberty of the mind.  Everything that comes into us, all the sensations,are judged by the mind.  It is by the mind that we determine  who wewill be  and what  we will value.  That  is why liberty  of the mind  isthe crucial  liberty.  That liberty is most closely connected  to the factthat  we  are  distinct  individuals  living  the  only  lives  we  will  everhave.  From that, it is a very  quick and necessary step  to notice thatwe  are not just minds;  we  are  embodied  minds, and therefore,  fromthe liberty of the mind we come by a very short step to the liberty ofthe body and all the expressions of the body that entails.  And that is*  Beneficial  Professor of Law,  Harvard  Law  School.  Professor  Fried  is  a  former  U.S.Solicitor General  and has researched  and published extensively  on issues in constitutional  law, aswell as legal and moral philosophy.1.  See, e.g.,  STEVEN  H.  SHIFFRIN,  DISSENT,  INJUSTICE,  AND THE  MEANINGS OF AMERICA(1999);  STEVEN H. SHIFFRIN,  THE FIRST AMENDMENT,  DEMOCRACY,  AND ROMANCE  (1990).2.  C.  Edwin  Baker,  Nicholas  F.  Gallichio  Professor  of  Law  and  Professor  ofCommunication,  University of Pennsylvania  Law School.3.  See C. Edwin Baker, Steve Shiffrin: Friend  and Scholar,  41  LoY. L.A. L. REV.  49 (2007)(discussing individual  liberty, arguing that commercial  speech should be denied First Amendmentprotection, and defending  the merits of restricting media concentration).LOYOLA  OF  LOS ANGELES LA W REVIEW  [Vol. 41:329why  I  thought  finally, finally the  Supreme  Court  spoke  as  a  truelibertarian  organ in the Lawrence 4 case.But that is just a  step along  the way in the  argument because-here  is  where  my  profound  but  respectful  disagreement  with  Ed5comes  in-from  mind  to  body  to  work  is  a  series  of very  short,inevitable,  and  desperately  important  steps.  Work  is  what  we  dowith our bodies;  it is one of the things we do  with our bodies as weseek to live  and as we  interact with others.  If somehow  the libertywhich  we  acknowledge  in  respect  to  our  minds  and  bodiesdisappears-poofl-when  we  join  the  world  of  work,  somethingreally quite awful happens, because it is in the world of work that themost urgent manifestations  of our minds and bodies take place.  NowI  have  a  more  capacious  view  of work  than  Ed,  and  if you  thinkabout it, in the end you will come to agree with my view and not his.I view my term "work"  to include what we are doing here today, thedinner that I am looking forward to tonight, the exchange  I will havewith the people who cooked that dinner, and the concert which I willenjoy tonight  in the Walt Disney  Concert Hall.  Not to  mention thebeauties of this quadrangle6 that was produced by work, and that ourbeing in it is a kind of work.But I would include-and here  is where the conversation  gets alittle  X-rated,  but  I  see  no children-I  would  say that dancing  andmaking love are work.  They are the expenditure of mind and body toproduce things  with others.  Now,  Ed says, "Ah, yes, but there  is  aradical  discontinuity  between  the  . . ."  well,  I  do  not  know  quitewhere,  but  I  am  sure  he  would  draw  the  line  at  making  love.However,  does what the Los Angeles  Philharmonic  will produce  forme  this  evening  fall  (to  use  a  phrase  from  Roberto  Unger'swonderful essay)7 on the Venetian or the Belmontian  side?  Belmont4.  Lawrence  v.  Texas,  539 U.S.  558  (2003)  (holding  that  a  Texas  statute  that placed  acriminal  prohibition  on  consensual  homosexual  sodomy  between  consenting  adultsunconstitutionally impinged on individual liberty interests protected by the Due Process Clause ofthe Fourteenth Amendment),  overruling  Bowers v. Hardwick, 478 U.S. 186  (1986).5.  See, e.g.,  C.  Edwin Baker, Paternalism,  Politics, and Citizen Freedom: The CommercialSpeech Quandary  in Nike, 54 CASE W. RES. L. REv.  1161,  1163 (2004)  (arguing that commercialentities  are  not "flesh  and blood  citizens"  and are  instead  "instrumental  creations  that we bringinto legal existence in order to serve our interests").6.  Referring  to  the  campus of Loyola  Law School  in  downtown Los Angeles,  California,designed by Pritzker-Prize-winning  architect Frank 0.  Gehry.7.  Roberto  Mangabeira  Unger,  The Critical  Legal Studies Movement, 96  HARV.  L.  REV.561,  622-23  (1983)  (referring  to  the  contrast  between  the  people  of Venice  and  Belmont  inFIRST AMENDMENTbeing the land of Ed Baker;  Venice being the land of commerce.  Butreally, is what happens at the philharmonic  Venetian or Belmontian?Well,  it  is  obviously  both,  and  my  conclusion  from  that  is  thatVenice is, or can be, Belmontian.  The reference  in Roberto's work isto  The Merchant of Venice'  and  the  land  of Belmont  is  the  terrafirma,  the  beautiful  suburb where  all  the merchants  repair  when theday's work is done.And,  to  confuse  you  more,  how  about  not the  Los  AngelesPhilharmonic,  which  could scarcely  operate  as  a pick-up  operation,but a  string  quartet?  That  can  be  Venetian  or Belmontian.  I  cansometimes  actually  pay people  to  play  with me for  some  reason  oranother, or I do not have to.  I  do not see why it makes any differencewhether  they  are  paid  or  not.  Ed  says-in  this  rather  antique,Marxist view which he is expressing-"Ah,  when money's  involved,it  is an exchange of power."9  Consider the sexual exchange.  Is thatan  exchange  of power?  Well,  yes,  no,  and  maybe.  Are  we  alldominated by power in our professional  lives?  Is  it the case that weare all compelled to  do that which will make us the most money?  Ifso,  I would  say no  one  in  this room  would be  doing  what they  aredoing.  Not one person.  I certainly would not be.We  are free  to earn  the most money we can,  to be beach  bums,or  anything  in  between,  and  what  we  do  now  is  somewhere  inbetween.  Therefore,  I do not  see  the  market  as  this radical  land  ofun-freedom  while  everything  else  from  mind  to  body  tocollaborative,  constructive  enterprise-whether it is the string quartetor the lovemaking or whatever-is Belmontian.  I think we all live inboth  places,  and  if  we  live  in  a  decent  society,  a  reasonablyprosperous  society,  we  can make  our Venices  as Belmontian  as wechoose;  and  indeed,  all  of us  have  chosen  to  make  them  ratherBelmontian.  If you  compare the way we  spend our days to the waythat  a  master  of the  universe  spends  his  at  Goldman  Sachs,  youWilliam  Shakespeare's  The  Merchant of Venice,  and  arguing  that  classical  contract  theorydichotomizes  life  into  a  sphere  of commerce  supervised  by  the  government  (Venetian)  and  aseparate sphere of personal  interactions unmotivated by commerce (Belmontian)).8. WILLIAM  SHAKESPEARE,  THE MERCHANT OF VENICE.9.  See,  e.g.,  Baker,  supra  note  3;  KARL  MARX,  ECONOMIC  &  PHILOSOPHICALMANUSCRIPTS  (Martin  Milligan  trans.,  Progress  Publishers  1959),  available  at  http://www.marxists.org/archive/marx/works/1844/manuscripts/preface.htm  (arguing  that  alienation ofhuman  work  is  the  defining  feature  of  capitalism  and  that  individuals  sell  labor  power  formonetary compensation).Fall 2007]332  LOYOLA  OF  LOS ANGELES LAW REVIEW  [Vol.41:329would see  that we are  exercising  our  freedom.  We  are free,  but weare paid, and  we are not  as free as we would like to be.  And that isbecause there are other people in the world.So that is the  general framework in which I view the question ofcommercial  speech.  There  are many places, and I have  learned someof them  at  this  conference,  where  the  freedom  of the  mind  is  notreally  implicated,  and  so  be  it.  That  is  fine.  But  the  tobaccocompanies making smoking seem attractive is really in the domain offreedom  of the mind,  and I  do not  see that  there  is  even a  coherentaccount of why, because  it is  a corporation,  all  of a sudden we havecrossed  the  lagoon,  and  we  are  in Venice.  What  is  a  corporationafter all?  It  is like  a  symphony orchestra,  or a  quartet,  or  a  couplemaking  love:  a  collection of people  organizing  their joint activities.It  is  nothing  else,  and  I  would not  reify  the  corporation  as  beinganything else.  What proves my point is that if Philip Morris  were  asole  proprietorship,  that would  not change  one  whit our judgmentsfor or  against tobacco  advertising,  or whether  there  must be  a labelon cigarettes saying these things will kill you.Well,  I have put  enough ideas before  you.  These  ideas  can  beput forward  in a more  coherent  and a more disciplined  way.  I haverecently tried to do that,"  but I think I have introduced my ideas andinvited you to think of a possible  alternative to some of the premiseswhich  have  been  put  forward  as  if they  were  axiomatic  and  self-demonstrating,  but they are  not.  Indeed, not only  are they not self-demonstrating, they are false.10.  See CHARLES  FRIED, MODERN  LIBERTY AND THE LIMITS  OF GOVERNMENT  (2006).

Philosophical Underpinnings of the First Amendment

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Philosophical Underpinnings of the First Amendment

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